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December 16, 2014

Fifth Circuit still says "nyet" to whooping cranes

Whooping crane in Texas in flight. John Noll/USDA

Refusing to give serious reconsideration to an earlier decision that that overthrew a federal district court ruling finding the Texas Commission on Environmental Quality liable in whooping crane deaths for not sending enough water down the Guadalupe and San Antonio rivers during drought, the Fifth Circuit Court of Appeals declined to rehear the three-judge panel's ruling en banc.

That said, per the story, it looks like we're headed to the Supreme Court with this; Houston environmental attorney Jim Blackburn has already pledged an appeal.

As he well should. TCEQ doesn't even want to live up to the E in its name.

And, the Fifth Circuit in general is not known for being very enlightened, as dissenting judge Edward Prado pointed out:

The way the three-judge panel handled the case “sends a
clear message to litigants: if you don’t like the factual findings of a
district court, the doors of our Court are wide open to endless retrials on
appeal,” Prado wrote. “This is the wrong message to send, and it evinces an
alarming lack of trust in the work of our colleagues in the district courts.”

He continued: Given the eight-day bench trial in the
original district court case, one involving ten expert witnesses, “The
reweighing of facts in this case is particularly egregious.”

Indeed. Not surprising, though, is it?

The case was originally heard at the district level early last year.

Federal District Judge Janis Jack said the TCEQ failed to adequately manage Guadalupe River water flows, so that enough frewshwater reached the sea ot nourish crabs for the cranes' food.

“Inactions and refusal to act by the TCEQ defendants proximately caused an unlawful ‘take’ of at least twenty-three whooping cranes” in violation of the endangered species act, Jack held.

The biggie that she said drought was and is no excuse.

And, the drought is likely, in at least some degree, to stick around for a while. And, unlike TCEQ, the Lower Colorado River Authority has, at least in the past, been cognizant of this.

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